Cite as U.S. v. Brady, 710 F.Supp. 290 (D.Colo. 1989)
UNITED STATES of America, Plaintiff,
v.
Ora A. BRADY, Defendant.
Crim. A. No. 88-CR-321.
United States District Court, D. Colorado.
April 6, 1989.
Joseph Mackey, Asst. U.S. Atty., Denver, for plaintiff.
Sheldon Emeson, Denver, for defendant.
MEMORANDUM OPINION AND ORDER
MATSCH, Judge.
The defendant is charged with two firearms violations. Count
I charges possession of an unregistered firearm under 26 U.S.C.
section 5861(d) and 26 U.S.C. section 5871. Count II charges
possession of a firearm by a convicted felon in violation of 18
U.S.C. section 922(g)(1). Trial was held to the court after a
waiver of jury.
FINDINGS OF FACT
The defendant, Ora A. Brady (Brady), is a 61-year-old tree
trimmer and concrete worker who traps animals in the winter when the
weather makes working his other jobs impossible. Brady has lived in
Baca County, Colorado for the past 40 years. On December 28, 1987,
Brady was found in possession of a number of "coyote getters" which
he had set out as animal traps.
A coyote getter is a device used to kill coyotes by propelling
cyanide into their mouths when they pull on the bait. A hollow tube
of light metal, crimped at one end, holds a spring-loaded firing pin
assembly which is cocked and held by a cross pin. Above it is a
shell holder, slightly longer than an empty .38 caliber shell
casing. The shell holder is made of soft metal. The coyote getter
is designed for use with a special .38 caliber shell that consists
of a normal .38 shell casing having only a primer, or a primer and
a negligible quantity of gunpowder. The cartridge fires a plastic
capsule filled with cyanide. The device is buried in the ground
with just the shell holder above the surface. The shell holder is
baited, animals are attracted to the bait and bite it, tripping the
firing mechanism, which in turn explodes the primer and kills the
animal by propelling the cyanide into the animal's mouth. Given
that the shell holder is made of light, soft metal, it is obvious
that the shell holder was not designed to contain the explosion of
a normal round of ammunition, but rather, was intended to keep the
cyanide cartridge in place, and hold the bait.
The coyote getters possessed by Brady were not registered as
firearms in the National Firearm Registration and Transfer Record of
the Treasury Department.
Brady pleaded guilty to an unrelated state offense in the
District Court for Baca County in 1987 and was put on probation for
two years. He was told he could possess a firearm in connection
with his work. In September, 1988, permission to possess a weapon
was revoked by the court because it was learned that possession
might be in violation of federal law. A hearing on the issue was
held on October 3, 1988. After some discussion, Judge Norman Arends
concluded that "Mr. Brady can utilize a firearm specifically for
hunting and trapping within the confines of his occupation." The
judge was aware of 18 U.S.C. section 922. Colorado law required
that the judge inform himself about Brady's prior record before
putting him on probation. See Colo.Rev.Stat. section 16-11-102
(requiring investigation of past criminal record upon a plea of
guilty); cf. Colo.Rev.Stat. section 16-11-203(1)(d) (prior record is
factor in probation determination). The judge's statement was
incorrect because Brady had two prior felony convictions.
When he was arrested by Alcohol, Tobacco and Firearms (ATF)
agents on November 29, 1988, Brady had a loaded .22 caliber revolver
in a holster on his person. Brady was standing by a pickup truck
which had a dead bobcat in the back. Brady's possession of the
revolver was for the purpose of pursuing his trapping vocation.
Brady shot the bobcat shortly before the arrest.
Richard Craze (Craze), a firearms enforcement officer for the
ATF, tested one of the coyote getters with a primed shell casing and
bullet, but no additional powder. The bullet travelled several
feet, and penetrated a piece of cardboard. Craze testified that the
device could be used as a handgun. However, he said that he was
afraid to test the device with standard ammunition because it would
be too dangerous.
Darrell Gretz (Gretz), a wildlife biologist and the Assistant
Regional Director of the United States Department of Agriculture,
also testified about the nature of the coyote getter. He agreed
with Craze that the device would be extremely dangerous to use as a
hand-held weapon firing standard ammunition because of the risk of
explosion. If normal ammunition were put in a coyote getter, there
is a probability that the cartridge would explode, disintegrating
the shell holder, and distributing fragments. The shell holder is
different from the barrel of a gun. The barrel of a gun contains
the force of the exploding powder and gives direction to a bullet
The part of the coyote getter holding the cartridge is only slightly
longer than the shell casing itself, therefore it would not
effectively contain the gasses to propel the bullet and could not
serve to direct the bullet.
CONCLUSIONS OF LAW
Count 1.
The controlling question is whether the government has proved
that the coyote getter is a firearm. The definition of firearm in
26 U.S.C. section 5845(a) includes "any other weapon." Any other
weapon includes "any weapon or device capable of being concealed on
the person from which a shot can be discharged through the energy of
an explosive." 26 U.S.C. section 5845(e). The government proposes
an absolutely literal interpretation of the law. A coyote getter is
concealable. A coyote getter can fire a shot through the energy of
an explosive. However, application of the statutory definition
without the limitation of common sense would criminalize the
possession of a cigarette lighter and a pair of pliers, or a hammer
and nail.
Two features of the coyote getter are convincing evidence that
this device is not a firearm. First, the device does not materially
increase the offensive usefulness of ammunition; that is, a user of
the coyote getter does not have a substantially better weapon in the
coyote getter than he would have with a cartridge by itself.
Second, the device would be so dangerous to the user that only a
person bereft of reason would consider using the coyote getter as a
firearm.
Further, the testing procedures employed by Craze are an
impressive example of actions speaking louder than words. Craze is
an experienced firearms expert and testified that this device was a
firearm. But while he was willing to test the device with a
cartridge consisting only of a primer, and then only of a primer and
a bullet but no powder, even with all the resources and equipment of
the ATF's Washington D.C., laboratory available to him, he felt it
was too dangerous to his personal safety to test it with an ordinary
round of .38 caliber ammunition. Without question many devices that
are dangerous to the user are such as, perhaps, cheaply made
"saturday night specials," or starter's pistols altered to accept
and fire normal ammunition. But this device is so useless as a
weapon, and so likely to cause injury to the user, that it cannot be
readily distinguished from the variety of common items that could,
as a purely theoretical matter, be used to fire ammunition, but that
as a matter of practicality and common sense would never be used for
that purpose by a sane person.
Every device that has been found to be any other weapon has
been a weapon capable of firing normal ammunition with some
likelihood that the projectile would go in the intended direction
and not injure the user of the weapon. The Revenue Rulings cited by
the government are instructive. In Revenue Ruling 56-47, for
instance, a device made of "nickel-chrome plated steel" that was
test fired "using .38 caliber, 146 grain wadcutter bullets and was
found to perform satisfactorily with no structural damage to the
device being incurred" was found to be a firearm. Similarly, in
Revenue Ruling 56-597, it was held that a .38 caliber tear gas gun
that could fire standard ammunition without structural damage was a
firearm, as was a 20 gauge tear gas gun that could fire standard
shotgun shells, again without "structural damage to the device
evidenced as a result of the test." In United States v. Decker, 292
F.2d 89, 90 (6th Cir.), cert, denied, 368 U.S. 834, 82 S.Ct. 58, 7
L.Ed.2d 36 (1961) the court held that a tear gas gun that could fire
commercial shotgun ammunition without rupturing the barrel or
causing damage to the weapon was a firearm. See also Davis v.
Erdmann, 607 P.2d 917, 919 (10th Cir.1979) (implicitly assuming that
a combination knife/pistol that could fire a .22 short cartridge was
within the definition of any other weapon); United States v. Ordnor,
554 F.2d 24, 26 & n. 3 (2d Cir.) (a "pen gun," which it described as
a device made from the triggering mechanism of a flare gun attached
to a machined barrel, was "any other weapon"), cert denied, 434 U.S.
824, 98 S.Ct. 71, 54 L.Ed.2d 82 (1977); United States v. Cheramie,
520 F.2d 325, 833 (5th Cir.1975) (affirming a conviction based on
possession of an unregistered pen gun); Moore v. United States, 512
F.2d 1255, 1256 (4th Cir.1975) (sawed off shotgun could be any other
weapon); United States v. Coston, 469 F.2d 1158, 1153 (4th Cir.1972)
(a flare gun capable of firing shotgun shells was any other weapon);
cf. United States v. Seven Misc. Firearms, 503 F.Supp. 565, 579
(D.D.C.1980) (noting that "the items are not even designed and
manufactured as weapons" in support of finding non-firing museum
pieces were not firearms). Research has found no cases in which a
court or administrative agency found that a device which was likely
to explode if used with normal ammunition was any other weapon.
This court concludes that the coyote getter is not any other
weapon, and so is not included within the definition of a firearm.
Brady is acquitted of this Count because the government has failed
to prove that he possessed a firearm. Accordingly, his other
defenses are not considered.
Count II.
Count II charges possession of a firearm by a convicted felon
based on Brady's possession of the .22 caliber revolver. Counsel
for the government correctly observes that the defenses to this
charge are few. Under the law, it is immaterial whether Brady knew
he was a convicted felon. See, eg., United States v. Williams, 588
F.2d 92 (4th Cir.1978). It also is no defense that he did not know
he was prohibited from possessing a firearm. See, eg., United States
v. Shomo, 786 F.2d 981, 985 (10th Cir.1986); United States v.
Laymon, 621 F.2d 1051, 1054 (10th Cir. 1980); but see United States
v. Rose, 695 F.2d 1356, 1358 (10th Cir.1982) (upholding conviction
for possession of an unregistered firearm under 26 U.S.C. section
5861(d) on the ground that there was sufficient evidence of intent
and notice of criminality of acts), cert. denied, 464 U.S. 836, 104
S.Ct. 123, 78 L.Ed.2d 121 (1988). All that the government needed to
prove to make a prima facie case was that the defendant possessed a
firearm, that the firearm travelled in interstate commerce, and that
he had previously been convicted of a crime punishable by a year or
more. See, e.g. United States v. Martin, 706 F.2d 263 (8th
Cir.1983) (decided under prior law).
Brady argues that the fact that a state court judge told him he
could possess a firearm in connection with his hunting and trapping
precludes his conviction. Since specific intent is not an element
of this offense, the fact that Brady may have reasonably believed
that he was violating no law is not a defense.
However, this is not a situation where a defendant relied on
nothing more than his own research or advice of counsel. Here, a
judge with criminal jurisdiction over Brady specifically told him
that he could continue to possess a firearm when hunting and
trapping. There is a difference between merely acting reasonably
and in good faith, and acting under the affirmative advice of a
judge. In this case, it would violate due process to convict Brady
of this offense in light of the fact that the defendant's conduct
conformed to the judge's statement of law.
Two Supreme Court cases illustrate the principle. In Raley v.
Ohio, 860 U.S. 428, 79 S.Ct. 1257, 8 L.Ed.2d 1844 (1959) four people
were convicted in state courts for refusing to answer questions of
a legislative commission. They were told by the legislators that
they could refuse to answer the questions because of the state
privilege against self-incrimination. This was not in fact the law
of Ohio because there was a statute giving the witnesses immunity.
Nonetheless, the court held that the witnesses could not be
convicted. To permit such a conviction, said the Court, "would be
to sanction an indefensible sort of entrapment by the State--
convicting a citizen for exercising a privilege which the State had
clearly told him was available to him." 860 U.S. at 426, 79 S.Ct. at
1260.
Importantly, the Court did not conclude that the witnesses had
been actually entrapped, that is, intentionally misled to entice
them to commit a crime. "Where is no suggestion that the Commission
had any intent to deceive the appellants." 360 U.S. at 488, 79 S.Ct.
at 1266. The Court presumed that the violation of law was caused by
the erroneous advice of the officials. In deciding to reverse, the
Court stated that "[w]e cannot reach a contrary conclusion by
[speculating] that some of the appellants might have behaved the
same way regardless of what the Commission told them." 860 U.S. at
439, 79 S.Ct. at 1267.
Similarly, in Cox v. Louisiana, 379 U.S. 559, 570-71, 85 S.Ct.
476, 483-84, 13 L.Ed. 2d 487 (1965) the Court reversed a conviction
for violating a statute that prohibited demonstrations near a
courthouse because the picketers had been told by the local police
chief that they could lawfully protest across the street from the
courthouse. Many other cases underscore the point. See United
States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 674,
98 S.Ct. 1804, 1816, 36 L.Ed.2d 567 (1973) ("traditional notions of
fairness inherent in our system of criminal justice" prevent the
government with proceeding with a prosecution under a statute when
the defendant reasonably relied on regulations issued under
authority of the statute permitting performance of the charged
acts); United States v. Clegg, 846 F.2d 1221, 1228 (9th Cir.1988)
(good faith reasonable reliance on the apparent authority of
government officials is a defense); United States v. Durrani, 885
F.2d 410, 422 (2d Cir.1987) (legitimate reliance on an official
interpretation of the law is a defense); United States v. Rosenthal,
798 F.2d 1214, 1285 (11th Cir.) (legitimate reliance on an official
interpretation of the law is a defense), modified on other grounds,
801 F.2d 378 (11th Cir.), cert denied, 480 U.S. 919, 107 S.Ct. 1877,
94 L.Ed.2d 692 (1987); United States v. Duggan, 748 F.2d 59, 88 (2d
Cir.1984) (although there are few exceptions to the rule that
ignorance of the law is no excuse, there "is an exception for
legitimate reliance on official interpretation of the law"); United
States v. Barker, 546 F.2d 940 (D.C.Cir.1976); see also Marks v.
United States, 430 U.S. 188, 196, 97 S.Ct 990, 995, 51 L.Ed.2d 260
(1977) (it would be violative of due process to convict publishers
based on an obscenity standard that came into existence after they
disseminated their materials, they were entitled to rely on the
previous standard); Model Penal Code section 2.04(3)(b) (1985)
(reasonable reliance on an official statement of the law by an
official responsible for interpretation, administration or
enforcement of the law is a defense to criminal conduct).
The case for allowing the due process defense when the advice
is given by a judge is even more compelling. Because of the unique
role of the judiciary in interpreting the law, many courts have
recognized that it "would be an act of 'intolerable injustice' to
hold criminally liable a person who had engaged in certain conduct
in reasonable reliance on a judicial opinion instructing that such
conduct is legal." Kratz v. Kratz, 477 F.Supp. 463, 481 (E.D.
Pa.1979) (footnotes omitted) (quoting Wilson v. Goodin, 163 S.W.2d
309, 313 (Ky. 1942)). Accord United States v. Albertini, 830 F.2d
985, 989 (9th Cir.1987) ("The doctrine is applied most often when an
individual acts in reliance on a statute or an express decision by
a competent court of general jurisdiction . . . "); United States v.
Moore, 586 F.2d 1029, 1033 (4th Cir.1978) ("Of course, one ought not
be punished if one reasonably relies on a judicial decision later
held to have been erroneous"); United States v. Mancuso, 139 F.2d
90, 92 (3d Cir.1943) (while all persons are presumed to know the
law, a layman is not expected to know more law than a judge); United
States v. Ehrlichman, 376 F.Supp. 29, 85 (D.D.C.1974) ("Mistake of
law may ... excuse an act if it resulted from good faith reliance
upon a court order or decision") (citations omitted).
Judge Arends was constitutionally obligated to apply federal
law when he gave advice to the defendant. See U.S. Const. Article
VI, section 2 (stating that the Constitution, laws, and treaties of
the United States "shall be the supreme law of the land; and the
judges in every state shall be bound thereby"); Schlesinger v.
Councilman, 420 U.S. 738, 756, 95 S.Ct. 1300, 1312, 43 L.Ed.2d 591
(1975) ("federal courts are 'not at liberty ... to presume that the
decision of the State court would be other than what is required by
the fundamental law of the land . . .'") (citation omitted); Public
Service Commission of Utah v. Wycoff Co., Inc., 344 U.S. 237, 247-
48, 73 S.Ct 236, 242-43, 97 L.Ed. 291 (1952) ("State courts are
bound equally with the federal courts by the Federal Constitution
and laws"); Testa v. Katt, 830 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967
(1947) (state courts are required to enforce federal laws); 28
U.S.C. section 1257 (describing appeal and certiorari of state court
decisions involving validity and constitutionality of federal and
state statutes); see also Colo.Const. Art. XII section 8 (requiring
civil officers, including judges, to take oaths in support of United
States Constitution). The state judge did more than mere authority
to interpret and apply federal law, he had a constitutional duty to
do so. Further, state judges have a role in regard to this
particular statute because state convictions trigger the appli-
cability of the law. The judge's errors, factually or legally, do
not vitiate the effect of his advice.
An opinion of the Eleventh Circuit is to the contrary. In
United States v. Bruscantini, 761 F.2d 640, 641-42 (11th Cir.),
cert. denied, 474 U.S. 904, 106 S.Ct. 271, 88 L.Ed.2d 238 (1985) the
court declined to apply Raley and Cox based on a state court judge's
assertion that a nolo plea did not make the defendant a convicted
felon. Bruscantini did not discuss the constitutional authority and
duty of state courts to interpret federal law.
Further, the opinion focuses on agency and estoppel principles
while Cox and Raley make clear that the purpose of the rule is to
prevent fundamental unfairness and injustice. Though the defense
recognized by Raley and Cox has been called "entrapment by estoppel"
it is not an estoppel at all in any meaningful sense. Neither Cox
nor Raley use the word "estoppel" even once. The doctrine stems
from the due process clause, not from the common law of contract,
equity or agency. Of course, it is settled that estoppel is not
available against the United States on the same terms as it is
against an ordinary litigant. See, eg., Heckler v. Community Health
Services, 467 U.S. 51, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984); Federal
Crop Insurance Corp. v. Merrill, 832 U.S. 880, 68 S.Ct. 1, 92 L.Ed.
10 (1947); United States v. Browning, 630 F.2d 694 (10th Cir.1980),
cert. denied, 451 U.S. 988, 101 S.Ct. 2824, 68 L.Ed.2d 846 (1981).
Further, even in criminal cases, the United States cannot be
estopped from prosecuting acts occurring after the law is made clear
to the defendant. In this case, for instance, the United States is
not estopped from prosecuting Brady if he ever possesses a firearm
in the future. Thus, though it is correct as Bruscantini suggests,
that a state court judge has no agency authority to do an act that
will create an estoppel against the United States, neither does a
federal judge, or even the President of the United States. The
better view is that the defense is not based on the government being
bound by the conduct of its agents, but rather, the fundamental
unfairness of punishing a defendant for conforming his conduct to an
erroneous interpretation of the law by a judge having the power to
confine him. Since the United States has given the state and
federal courts a joint role in applying the Constitution and laws of
the United States, a person is entitled to rely on a state court's
views of federal law. Accordingly, this court declines to follow
Bruscantini.
The due process defense is available even for a crime like this
where there is no requirement of proof that the defendant knew he
was committing a crime. This defense does not merely negate intent,
it negates the criminality of the act. Accordingly, in United
States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir.1987) the court
applied this principle to reverse a conviction under section 922.
See also United States v. Ehrlichman, 876 F.Supp. 29, 85 (D.D.C.
1974) (mistake of law defense available to negate intent element of
specific intent crimes, or it may excuse an act based on reasonable
reliance on a court order or decision).
Upon all of the foregoing, it is
ORDERED that Ora A. Brady is found not guilty of the offense
charged in Count I of the indictment and it is
FURTHER ORDERED that Ora A. Brady is found not guilty of the
offense charged in Count II of the indictment.